The Ala. Great Southern R.R. v. Gilbert
| Decision Date | 30 September 1883 |
| Citation | 71 Ga. 591 |
| Court | Georgia Supreme Court |
| Parties | The Alabama Great Southern Railroad. vs. Gilbert. |
Railroads. Eminent Domain. Laws. Corporations. Prescription. Before Judge Fain. Dade Superior Court. March Term, 1883.
Reported in the decision.
W. N. & J. P. Jacoway; R. J. McCamy, for plaintiff in error.
T. J. Lumpkin; Graham & Graham, for defendant.
By the charter of the Alabama Great Southern Railroad Company, formerly the Wills Valley Railroad Company, the company is empowered, under the state's right of eminent domain, to condemn for right of way so many feet of width of road-bed, and each side thereof, provided it does not interfere with any building. Acts of 1854, p. 464. On defendant's land the company failed to take steps to condemn the land according to the charter, but constructed the road over defendant's land without doing so, and has been in the use and enjoyment of the road-bed alone since its construction. The defendant, in 1873, some nine years before proceedings of any sort were taken to condemn the land under the charter, built upon that part of his land near the track of the road, but not in the occupancy of the company, and has been in the peaceable and adverse possession of it continuously for that period.
In 1882, proceedings were begun in the court of ordinary to condemn the land to the full extent of the right of way, including that portion of his land so built upon by defendant. The case was taken by appeal to the superior court, and decided adversely to the company, whereupon it excepted, and brought the case to this court.
The question is, can the company now condemn the land with the buildings thereon, or rather the land so built upon?
The right of private property is very sacred in the eye of the law. It stands on the same foundation as the co-ordinate rights of personal liberty and personal security. It only yields to the right of eminent domain in the state, and it can be taken for public use only after just compensation. Constitution of Georgia, Code, §§4994, 4995, 5024.
It is upon the principle that railroads are for public use that private property can be condemned for their way over the lands of others, and provision is made in the charter of railroad companies for the manner of condemning it and the extent to which that condemnation can go, always upon just compensation, and the mode of ascertaining it. These charter rights, overriding, as they do, the high right of private property, are construed strictly; and the exercise of the right must, with equal strictness, be held to a rigid compliance with the law of its existence, the charter by which alone it can move. 5 Ga., 561; 7 Ib., 221; 49 Ib., 151.
This charter grants this company the right to subject land to the purposes of this railway, but only naked land. Land on which buildings of any sort are erected, cannot be condemned on any terms whatever, against the will of the owner. Buildings are on this land of defendant; therefore it cannot be condemned under this charter.
But it is said that at the time the road-bed was con structed, the defendant had not erected the building in question, and that he built with knowledge that the company was entitled to condemn that part of his land whereon he did build. The reply is that the company saw fit to content itself with the road-bed only. It did not even condemn, under the charter, that much of defendant's property, but it was either given to the company, or bought by it from defendant, or the company was permitted by a sort of tacit license to use so...
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